A federal appeals court has again refused a request from Illinois state election officials – who have been represented by lawyers affiliated with Democratic Illinois House Speaker Michael Madigan – to allow the state to undo a deal they had struck with Illinois’ “third parties” and independent candidates to ensure they wouldn’t be blocked from the ballot, under COVID-19 activity restrictions imposed by Democratic Gov. JB Pritzker.
On Aug. 20, a three-judge panel of the U.S. Seventh Circuit Court of Appeals issued an order denying the appeal brought by the Illinois State Board of Elections. The appeals judges said a federal district judge did not abuse her discretion by issuing an order to cement the deal originally agreed to by the state elections board to ease ballot access rules amid the COVID-19 pandemic.
“In reviewing the claims before us, we decline to allow the (Elections) Board to change the ballot-access requirements on the eve of the deadline for certifying the final contents of the ballot,” the appellate judges wrote. “Indeed … the Board seeks to challenge injunctive relief that it initially agreed was necessary and proper.
“And only after engaging in meaningful delay, including in pursuing this appeal, did the Board change course and put at risk the reliance the plaintiffs have placed in the orders entered by the district court.”
The legal action dates back to April, when the Illinois Libertarian Party filed suit, asserting activity restrictions issued by Pritzker in response to the outbreak of COVID-19 in Illinois made it all but impossible for their candidates, as well as independent candidates, to comply with the state’s rules governing how ballot nominating petitions could be circulated during the pandemic.
The Green Party eventually joined the lawsuit. Together, the “third parties” argued that maintaining the typical ballot access rules amid the pandemic would tilt the ballot placement process in favor of candidates backed by the state’s Democratic and Republican parties, and infringe on the constitutional rights of other candidates.
Initially, the state elections board, represented by the Illinois Attorney General’s Office, agreed to a deal. The state would allow the third parties to place candidates on the ballot either without circulating petitions, or with significantly reduced signature-collection requirements, depending on whether the parties had fielded a candidate in those races in the recent past.
That deal was cemented in an order issued by U.S. District Judge Rebecca Pallmeyer.
However, the state elections board asked the judge to reconsider that decision and allow the state to rewrite that deal. The state elections board was represented in the new action by attorney Michael J. Kasper, an elections lawyer with deep, longstanding connections to the state Democratic Party and its leader, Speaker Madigan.
Kasper had been appointed to that task as a “special assistant attorney general” by Democratic Illinois Attorney General Kwame Raoul.
He was joined in that role by attorneys with the firm of Hinshaw & Culbertson, of Chicago, including attorney Adam Vaught, who had represented Madigan personally in past legal cases.
Judge Pallmeyer refused to reconsider, prompting the state to appeal to the Seventh Circuit. Kasper did not represent the state on appeal, though Vaught still did.
The state asserted the appellate judges should weigh in, to set parameters defining when and how federal judges can dictate to the state how to administer elections.
The appeal was opposed by the third parties.
The appellate judges, however, noted Judge Pallmeyer did not order the state to rewrite its rules. Rather, the state did so by choice, recognizing “some relief was warranted due to the pandemic.”
Judge Pallmeyer, in approving the agreement, said she “did not need to devote significant attention to constitutional questions … because the parties ‘proposed an order that grants appropriate relief in these unprecedented circumstances.’”
She further noted the deal helped all involved better navigate the political environment created by Pritzker’s “restrictions on public gatherings,” which “presented ‘a nearly insurmountable hurdle for new party and independent candidates attempting to have their names placed on the general election ballot.’”
The judges noted the state officials, while pressing for the right to rewrite the deal, “devotes not a word to addressing the harm this would cause to candidates and parties who have relied on” the deal, nor did the state “explain how it would make the relevant determinations regarding ballot access.”
They noted any change made to the rules now would “severely limit or prevent third-party or independent candidates from accessing the November ballot.”
“The Board consistently recognized the challenges presented by the COVID-19 pandemic and expressed willingness to alter Illinois’ election procedures,” the appellate judges wrote. “It does not argue that it was coerced into agreement by the district court or that it was prevented from raising any objections at the hearing or before submitting the preliminary injunction it drafted.
“The district court appropriately allowed the Board to determine what changes to Illinois’s ballot-access provisions would balance the rights of candidates and state election officials.”